Labor Law Newsletter - December 2021

HOLIDAYS

Employees whose dismissal is declared null and void generate, in the period between the date of dismissal and their reinstatement, the holiday entitlement. Judgment of the Supreme Court, Sala de lo Social, of May 11, 2021, Rec. 3630/2018. 

The judgment is based on the fact that the employee has been denied of the enjoyment of the aforementioned vacation in an unforeseeable manner and beyond his control, so that, after his reinstatement, there is no reason to deny his enjoyment, without prejudice to the fact that the dates must be agreed, logically, with the company.

The expulsion from the WhatsApp group of the department days before the date of dismissal does not violate the right to honor and self-image. Judgment of the Superior Court of Justice of La Rioja, Sala de lo Social, of May 13, 2021, Rec. 55/2021.

As long as the referred WhatsApp group was considered as another work tool, especially when it considers that no information about the dismissal was disclosed to third parties. The Court upholds the exclusion as a practice consistent with the termination of the contract.

WORKING CONDITIONS

The implementation of a "hot desk" or "flexible sites" system in the work center is not a substantial modification of the working conditions (MSCT). Judgment of the Audiencia Nacional, Sala de lo Social, of July 27, 2021, Rec. 277/2020.

The National Court denied the existence of a MSCT because the company proved that: (i) the flexible work assignment system had a weekly planning that did not vary throughout the week (every Thursday the following week's schedule was issued and each user received an e-mail with his weekly schedule, with each employee proceeding to reserve his work station according to this planning), (ii) the configuration of work teams was respected by encouraging the reservation of nearby work stations and (iii) employees were not changed from one work center to another.

SALARY SUPPLEMENTS AND BONUSES

Judgment of the Supreme Court, Sala de lo Social, of June 23, 2021, Rec. 161/2019.

The company must pay language, night, holiday and Sunday bonuses to employees on paid leave when the collective labor agreement links these bonuses to the job position and therefore not to the actual performance.

The SC understands that not paying these bonuses on leave days could also constitute indirect discrimination because they are mostly enjoyed by women.

EQUALITY PLANS

The company denied the inclusion of a representative of a new union section in the negotiating committee of an already constituted Equality Plan. Judgment of the National Audience, Sala de lo Social, of October 19, 2021, Rec. 181/2021.

After an electoral process, a new union section was created in the company -from another union with a presence in the Works Council- which demanded to be represented in the negotiating committee of the plan. Given that, at the time of the creation of the commission, this union section did not exist, the company refused to include a representative of this section in the commission.

The ruling imposes a fine on the plaintiff union for taking the company to court proceedings knowing that its claim was unfounded and unsustainable in legal terms.
 

WORK ACCIDENTS

It is considered an accident derived from work the one that takes place during the coffee break time. Judgment of the Supreme Court, Sala de lo Social, of April 20, 2021, Rec. 4466/2018.

In order to classify an accident as work-related, the SC resorts to the theory of "relevant occasionality”, determining that there is a nexus of chance because: (i) the employee was injured when he left the company on his way to have a coffee within the legally provided fifteen-minute break time (ii) work being the condition without which the harmful event would not have occurred.